Saving marriage...to GC or not to GC?

N

newbie1234

Member
Here is a situation:
Husband was on H1, left US 5 yrs back for India & is a professional worker. Wife separated from husband, remained in US, also had an H1, applied for GC and is currently in adjustment of status, fingerprint is also done. She also has their US citizen child with her.
Husband and wife now decide to rejoin after 5 yrs, and preferably stay in US. What options do they have, before time runs out?

- he can go to US as visitor, wife then applies for spouse's adustment of status, then he can find a job & work in US. Both get their GC eventually.

- wife comes to India on something like "advanced parole", then either both apply for consular processing in India or both return to US in a few months.

The intent is to get GC status for both husband & wife, and let them decide where to stay together, save their marriage :)

Are there any other options? How much time do they have typically before wife can apply for husband's adjustment of status?

There is also a child support order in US with some arrears...both of them are not aware of its current status. But both would want to get rid of it. Can this order prevent husband from getting a B1 visa at consulate or entering US itself?

Any part of full responses will be truly appreciated!!
 
newbie1234 said:
- he can go to US as visitor, wife then applies for spouse's adustment of status, then he can find a job & work in US. Both get their GC eventually.
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No, only US citizens filing for a spouse can easily get away with that. Remember the B1/B2 visa requires nonimmigrant intent.

- wife comes to India on something like "advanced parole", then either both apply for consular processing in India or both return to US in a few months.
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Advance parole must be applied when the applicant is within the US. So that won't work either.

Are there any other options?
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Consular processing for the spouse in India. Or if the person still in the US has H1 status (the H1 has not expired, and they did not work for any employer other than the H1 sponsor), the spouse can get an H4 to enter the US.

There is also a child support order in US with some arrears...both of them are not aware of its current status. But both would want to get rid of it. Can this order prevent husband from getting a B1 visa at consulate or entering US itself?
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Forget about the B1 in this situation, child support or not.
 
newbie1234 said:
Here is a situation:
Husband was on H1, left US 5 yrs back for India & is a professional worker. Wife separated from husband, remained in US, also had an H1, applied for GC and is currently in adjustment of status, fingerprint is also done. She also has their US citizen child with her.
Husband and wife now decide to rejoin after 5 yrs, and preferably stay in US. What options do they have, before time runs out?

- he can go to US as visitor, wife then applies for spouse's adustment of status, then he can find a job & work in US. Both get their GC eventually.

- wife comes to India on something like "advanced parole", then either both apply for consular processing in India or both return to US in a few months.

The intent is to get GC status for both husband & wife, and let them decide where to stay together, save their marriage :)

Are there any other options? How much time do they have typically before wife can apply for husband's adjustment of status?

There is also a child support order in US with some arrears...both of them are not aware of its current status. But both would want to get rid of it. Can this order prevent husband from getting a B1 visa at consulate or entering US itself?

Any part of full responses will be truly appreciated!!
Click to expand...

If he had the H1 within last six years he can claim any remaining period without going for the new H1. Moreover he can also come in next year H1 quota. He can also try to get an L visa. Once he comes here he can apply for the I-485.
 
number30 said:
If he had the H1 within last six years he can claim any remaining period without going for the new H1.
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Having an H1 in the past without having used up 6 years of H1 status allows one to be exempt from the quota, but a new H1 is still required if the most recent one has expired (which would be the case given that he has been in India for the past 5 years), or if the employer who did the H1 will not take him back as an employee in the US.
 
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Some clarity!

So it's clear that B1 is out of question. He can get H4 on wife's H1, enter US, she can apply for his AOS and quite likely, he may get it.

Or like JackoLantern says, he can find an employer, get a "new" H1 without waiting for next year's quota. I am not clear - how can new H1 be exempt from quota? Or are you saying this will be H1 transfer? His H1 expired way back, he got a B1 after that which is also expired.

What if wife goes to India on parole and they both approach consultate for processing there?
 
newbie1234 said:
He can get H4 on wife's H1, enter US, she can apply for his AOS and quite likely, he may get it.
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He enters on H4, He applies for his AOS, and will get it. No may.

Or like JackoLantern says, he can find an employer, get a "new" H1 without waiting for next year's quota. I am not clear - how can new H1 be exempt from quota? Or are you saying this will be H1 transfer? His H1 expired way back, he got a B1 after that which is also expired.
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My guess is that if it's less than six years from the start date of the original H1, then I suppose he could claim the unused time from the original six year limit, but that's just a guess. I haven't seen one of these cases before.
 
One thing to keep in mind is that for either consular processing or AOS, the wife's PD has to be current for him to be able to apply for his AOS - in other words, if she is EB3 India May 2004 (for example), it could be a long time till he is eligible to apply for AOS. If she is current, then this is not a factor.

I believe that if you have held a H1B visa in the past 6 years, you will not be counted against the H visa cap. So if he applies and gets a new H1B (or H4, depending on her status) visa, then he can come to the USA on that - but will not be eligible for EAD or AP till after he applies for AOS.

Hope that helps,
dg
 
newbie1234 said:
Here is a situation:
Husband was on H1, left US 5 yrs back for India & is a professional worker.

Wife separated from husband, remained in US,
------------------- Did they legaly got divorced in US or India? Or they are still legally married?

also had an H1, applied for GC and is currently in adjustment of status, fingerprint is also done. She also has their US citizen child with her.
Husband and wife now decide to rejoin after 5 yrs, and preferably stay in US. What options do they have, before time runs out?

- he can go to US as visitor, wife then applies for spouse's adustment of status, then he can find a job & work in US. Both get their GC eventually.

- wife comes to India on something like "advanced parole", then either both apply for consular processing in India or both return to US in a few months.

The intent is to get GC status for both husband & wife, and let them decide where to stay together, save their marriage :)

Are there any other options? How much time do they have typically before wife can apply for husband's adjustment of status?

There is also a child support order in US with some arrears...both of them are not aware of its current status. But both would want to get rid of it. Can this order prevent husband from getting a B1 visa at consulate or entering US itself?

Any part of full responses will be truly appreciated!!
Click to expand...

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